122 warranty; sale and warranty by agent, etc. 



a special agent; then it is the duty of persons dealing 

 with such agent to ascertain the extent of his authority ; 

 and the principal will not be hound by any act of the 

 agent not warranted expressly by or by fair and necessary 

 implication from, the terms of the authority delegated 

 to him(«). Therefore the servant of a private owner 

 entrusted to sell a horse on one particular occasion, not 

 at a fair or public mart, is not by law authorized to bind 

 his master by a warranty ; and the buyer who takes such 

 a warranty, takes it at the risk of being able to prove that 

 the servant had in fact his master's authority to give it. 

 But the existence of this authority may be inferred ; e.g., 

 it was held in an action for the breach of a warranty on 

 the sale of a horse by the servant of a private owner, that 

 a letter from the plaintiff's attorney to the defendant, 

 referring to the alleged warranty and averring a breach of 

 it, and an answer from the defendant merely denying the 

 breach of it, afforded evidence whence the jury were 

 justified in finding that the servant had authority in fact to 

 warrant {k) . 

 "Warranty by In Brady V. ToddiJ), Erie, C. J., in delivering the judgment 

 3^11 fair °™* of the Court, said, " When the facts raise the question, it 

 will be time to decide the liability created by such a 

 servant as a foreman alleged to be a general agent, or such 

 a special agent as a person intrusted with the sale of a 

 horse in a fair or other public mart, where stranger meets 

 stranger, and the usual course of business is for the person 

 in possession of the horse, and appearing to be the owner, 

 to have all the powers of an owner in respect of the sale ; 

 the authority may, under such circumstances as are last 

 referred to, be implied, though the circumstances of the 

 present case do not create the same inference." Previously 

 to this case it had been held that the servant of a private 

 owner employed to sell a horse at a fair, and receive the price, 

 had an implied authority to warrant the horse to be sound, 

 Lord Ellenborough saying, " If the servant was authorized 

 to sell the horse and to receive the stipulated price, I think 

 he was incidentally authorized to give a warranty of sound- 

 ness. It is now most usual on the sale of horses to require 

 a warranty ; and the agent who is employed to sell, when 



(«) Brady v. Todd, 9 C. B., N. S. (/.■) mikr y. Zawlon, 15 C. B 



592; 30 L. J., C. P. 223 ; i L. T., N. S. 834. It should, howeyer, be 



N. S. 212 ; 9 W. E. 483. See noted that in tliis case the sale took 



Alexander v. Gibson, 2 Camp. 555 ; place at a fair. 

 11 E. E. 797. [l] 30 L. J., C. P. at p. 225. 



